c284:No. 15343

EDGERTON, Circuit Judge
(dissenting).
Two police detectives cruising in a squad car, at night, saw one Davis lying on a sidewalk. One of the detectives testified that appellant, a co-defendant, and a third man who ran away and was not apprehended, were “standing over” Davis; that the defendants were “holding the man by his shoulder”; and that the third man was “going through [Davis’s] pockets.” The other detective, who was on the side of the car nearest the scene, saw that the defendants “were over the man”, “were bent down over him”, but “couldn’t say what they were doing.”
The defendants were arrested walking away from the scene. Neither had the money Davis missed.
The opinion of the court describes the officers as “eyewitnesses who came on the scene as the assault on the victim was taking place” and “immediately apprehended two of the three assailants.” But neither officer, and no other witness, saw the appellant or anyone else strike Davis. Davis himself was unable to identify anyone as having struck him.
In his closing argument, the prosecutor made these statements regarding the testimony: “Officer Wesley said that they [the defendants] said they found a man lying on the street, found him lying on the street. They later changed that story to say the man turned around and asked him [sic] why was he following him, and reached in his pocket and it’s the old story about they thought the man was going to strike them. In other words, these two men thought they were in danger of serious bodily harm, and for that reason they struck and knocked this man down on the street and walked away and left him there.” (Emphasis added.)
Defense counsel then said: “I am going to ask that that statement be stricken because there was no testimony, as I recall, that Davis was struck in self-defense.” This colloquy followed: “The Court: Will you read Mr. Blackwell’s statement. (The statement in question was read by the reporter.) Mr, Ochipinti: I don’t remember any such testimony they made to the officers. The Court: I will sustain your objection. The statement will be stricken.”
But the prosecutor did not let the matter drop. He went on: “Well, ladies and gentlemen, it wasn’t my desire to mislead you that these defendants made any such statement. I was just only relying on the logical inference in the case. They did not make a statement that they struck this man in self-defense or they were in fear of bodily harm, and I did not intend to convey that to you, ladies and gentlemen. It was only inference I was trying to say could be drawn therefrom. But I think the testimony is that they struck the man.” (Emphasis added.) Thus the prosecutor told the jury that “self-defense” was “only inference” but that “they struck the man” was “testimony”.
I have pointed out that there was no such testimony.
The accusatory and prejudicial part of the statement which the prosecutor had previously made, and which had been stricken on counsel’s objection, was to the effect that the defendants said “they struck and knocked this man down * -x- The purported explanation, self-defense, which the prosecutor attributed to them, was not accusatory or prejudicial; on the contrary, it was exculpatory. No one could possibly have imagined that defense counsel’s objection was aimed, and aimed exclusively, at the exculpatory part of the prosecutor’s statement. It was obviously aimed at the accusatory and prejudicial part. The prosecutor proceeded to repeat that part in other words. The “testimony”, he said, “is that they struck the man.” Defense counsel’s objection, which he had just made, applied alike to the first form of the prosecutor’s statement and to the second. It was therefore unnecessary for counsel to repeat his objection. We need not invoke F.R.Crim.P. Rule 52(b), which provides that “Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court.”
If anything had made it certain that the defendants struck the man, the prosecutor’s misstatement “the testimony is that they struck the man” might, perhaps, have been harmless. But it was by no means certain that the defendants struck the man, and the prosecutor’s misstatement was by no means harmless. The evidence left it completely uncertain who, if anyone, had struck Davis. We cannot assume that no juror believed what the prosecutor said, or that no juror’s vote was affected by this belief.
The case was by no means open and shut. The events happened at night. Particularly since the officer who had the best opportunity to see what the defendants were doing “couldn’t say what they were doing”, a jury might have a reasonable doubt whether they v/ere holding the man or merely looking at him. It was indispensable to the prosecution’s case that the jury be led to believe the testimony of the only witness who said the defendants were holding the man, for there was no other strong evidence that they robbed him. Obviously the jury was more likely to believe the defendants held him if it believed they previously struck him. The prosecutor’s misstatement, made in closing argument, may well have left the jury with the exceedingly damaging and wholly erroneous impression that a witness had seen the defendants strike Davis. In my opinion this made “prejudice to the cause of the accused * * * so highly probable that [the court] is not justified in assuming its non-existence.” Berger v. United States, 295 U.S. 78, 89, 55 S.Ct. 629, 79 L.Ed. 1314.
“It is well settled that the jury’s consideration in a case should be limited to those matters actually brought out in evidence and that summation should not be used to put before the jury facts not actually presented in evidence. This doctrine is especially important in criminal trials: the prosecutor represents ‘a sovereignty whose obligation is to govern impartially.’ Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 633, 79 L.Ed. 1314. As [that case] suggests, this obligation may cause a jury to place more confidence in the word of a United States Attorney than in that of an ordinary member of the Bar.” United States v. Spangelet, 2 Cir., 1958, 258 F.2d 338, 342. Cf. Stewart v. United States, 101 U.S.App.D.C. 51, 55-56, 247 F.2d 42, 46-47.
This case is unlike Allen v. United States, 106 U.S.App.D.C. 350, 273 F.2d 85, where the prosecutor’s statement about testimony was only a prediction made in his opening argument and, moreover, concerned a relatively minor matter.
I think we should reverse the conviction.

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